Friday, March 29, 2019

Donald Trump wants a guy named Stephen Moore to be the next person to join the Board of Governors of the Federal Reserve System. Even if the only part of the previous sentence that you can follow is "Donald Trump wants," you know that whatever comes after those words is almost certainly based on ignorance, stupidity, or venality -- or, most likely when dealing with Trump, all three. And in this case, the situation is truly, truly bad.

As background, the Federal Reserve System (the Fed) is the name of this country's central bank (given that opaque name in 1913 to fend off populist fears of an all-powerful Bank of the United States). The Fed is required by law to set monetary policy to maximize employment and economic growth while minimizing inflation. Although it has a number of policy tools available, the Fed's key ongoing decision is whether to increase or decrease interest rates.

Stephen Moore is a hack. He is what other hacks point to when they are accused of being hacks, saying, "Hey, I'm not a hack. He is a hack!" Moore is not merely a hyper-conservative partisan, although he is that. He is also spectacularly wrong all the time, and he is willing to say anything -- anything at all -- to try to score political points.

A moment ago, I googled the words "Stephen Moore dishonest," and the top hits had these titles: "Further Documentation on 'Stephen Moore is a Liar'" from January 1, 2018, "This Trump advisor might be even more confused about climate and energy than Trump himself," from September 9, 2016, "Stephen Moore is Not a Real Economist," from November 28, 2017, and (skipping a highly negative piece simply titled "Stephen Moore") "Stephen Moore is Good at Being Wrong," from two days ago.

Truly, this is a standout moment in Trump's presidency, finding an appointee so bad that he makes people wonder whether we owe Betsy DeVos, Scott Pruitt, and Wilbur Ross apologies. (No, we definitely do not, but still.) Moore is so aggressively ignorant and unwilling to acknowledge reality that the only wonder is that he had not already been nominated by Trump to some other position.

As much fun as it would be to continue the pile-on in the Moore-mocking Olympics, however, I want to use this as a moment to reflect on the continuity between the Republican Party's descent over the past forty years or so and what is happening under Trump. As in so many things (most obviously its bigotry, where a party that was more than happy to play footsie with white supremacists and use dog-whistles to scare white voters has now decided that it no longer needs to bother with pretenses), Trump does not represent a break from Republicans' recent history but merely its logical and inevitable continuation.

Moore is a particularly good exclamation point in seeing all of that, but he is nothing more than an extreme among extremes. It is, however, interesting to think about this in the context of some recent history. Republicans once claimed to value expertise -- puffing themselves up as the "party of ideas" -- but if that were ever true (no), it certainly has not been true for decades.

Thursday, March 28, 2019

In the United States, talking about single-issue voters is almost always a discussion about anti-abortion fundamentalist Christians. With Donald Trump in the picture, their single-issueness has become glaringly clear, because they are his most devoted supporters even as he embodies everything that they claim to despise. It used to be possible to imagine that right-wing Christians, for a variety of reasons, happened to have views that lined up with Republicans along a number of important dimensions, but that pretense is now simply gone. Trump promises to give them anti-Roe judges and attacks on Planned Parenthood (and further attacks on reproductive rights), and that keeps the Christian Right firmly in his camp, no matter what.

Not that there is anything wrong with being a single-issue voter. It so happens that anti-abortion true believers have incoherent and unsupportable views even on their own religious grounds, and they are only too happy to impose their views on women's bodies and liberty, but that makes them wrong about being anti-choice. If their ill-formed view on that issue is also the only political matter that motivates them, however, then they have every reason to vote on that basis.

Even so, most people in most situations are likely to say that they care about a variety of issues, and they understand that they cannot expect to get what they want all of the time, or even a lot of the time. Being a single-issue voter seems strange and creepily extreme, because it is so easy to wonder why such a voter would answer "yes" to the question: "If I gave you what you wanted on every other issue, but not on your single issue, would you still refuse to change your vote?" Views so fiercely held almost scream "I'm an unreasoning zealot!"

Wednesday, March 27, 2019

by Michael C. Dorf
Today on Verdictyou can find Prof Colb's discussion of the recent cert grant in Ramos v. Louisiana, which poses the question whether the Sixth Amendment is fully incorporated against the states. In 1972 in Apodaca v. Oregon, the Court said that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to jury trial in serious criminal cases in state court but does not incorporate it jot-for-jot; thus, although the Sixth Amendment requires unanimous juries in federal court, the Fourteenth Amendment permits conviction by a less-than-unanimous jury in state court.

Actually, the Court did not say that. Only Justice Powell did. All of the other justices thought that the Fourteenth Amendment incorporates the Sixth jot-for-jot, but some thought both require unanimity and others thought neither requires unanimity. Powell was in the middle and thus his opinion (in the companion case of Johnson v. Louisiana)was controlling, but he was the only justice who thought that a right could be incorporated against the states but not as demanding of the states as it is of the federal government.

Prof Colb's column focuses on the benefits of unanimity and argues in favor of applying the unanimity rule in state courts as a means of reinforcing the beyond-a-reasonable-doubt standard. I highly recommend it. In the balance of this post, however, I want to talk a bit more about incorporation of the Bill of Rights.

There are times when something is unknown to us, yet when it becomes known, we feel like it must have been obvious all along. The eruption of blatant racism after Barack Obama became president certainly falls into that category: Before the backlash happened, many people felt that Obama's election signaled the permanent marginalization of even most of the coded racism that Republicans had been perfecting for decades; but somehow it now seems that we must have known all along that his presidency would inevitably lead to the rise of racist demagoguery.

Which brings us, of course, to Donald Trump. Having ridden "birtherism" to political fame, and doubling down on every kind of bigotry imaginable -- aided and abetted, of course, by Fox News and the entire Republican infrastructure -- Trump turned hatred into a political cult, which he has used to drain the few remaining principles out of the party that he took over.

With the end of the Mueller probe, we are now seeing another surprising-but-not-at-all-surprising development, which is the bizarre idea that Trump "won" and that Democrats now have no choice but to ignore his many corruptions. The insta-conventional wisdom is that, at best, Democrats have received a favor from Mueller by forcing them to focus on issues that matter -- as if presidential corruption is not an issue that matters. Even more weirdly, it now seems unsurprising to see reports that Trump will try to "turn the tables"on his enemies in post-Mueller Washington. (The good news: Trump and the Republicans cannot stop themselves from overplaying their hands.)

How did this happen? Here, I will explain why the reports about Mueller's report -- had we known about them in advance -- would not have seemed at all to be able to "lift the cloud hanging over the White House," as The New York Times and other mainstream outlets have put it in the past day or so. (Side note: If Trump ever complains again about the Times's coverage of him, he should look at this week's nonsense from that newspaper, especially its headline writers and Peter Baker's writing.)

In the course of describing what is objectively bad news for Trump, I will also try to explain how this is all somehow being spun as good news -- not just by Trump, but by his "enemies" in the press. Again, we should have seen this coming, because it all seems so, so depressingly obvious now.

Monday, March 25, 2019

Last Wednesday, three federal judges appointed by Republican Presidents expressed great skepticism over a lawsuit brought by the State of Maryland and the District of Columbia alleging that President Trump is violating the Emoluments Clauses of the Constitution. The provision that deals with foreign countries (this post is limited to that clause) provides that "No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." This constitutional limitation has never been interpreted by the Supreme Court. In addition to the lawsuit brought by Maryland and the District of Columbia, there are similar lawsuits filed by member of Congress (disclaimer I worked on a brief in that case), and by a citizens organization called CREW in the Southern District of New York (that case has been dismissed and is now on appeal).

Friday, March 22, 2019

The nation's tax collector is always in a politically precarious position. Anti-tax demagoguery is forever in the air, including ahistorical references to the Boston Tea Party (which was actually a protest against a tax break for businesses, not an uprising against paying taxes) along with moronic comments about "keeping the government's hand out of your pocket" and similar rhetoric.

Meanwhile, the people who understand the importance of the Internal Revenue Service are often hesitant to defend it, because there is simply no political upside to doing so.

And then there is the Republican Party, which claims to favor law and order but is suddenly tolerant of moral relativism when it comes to people not paying their taxes (and also when it comes to businesses that decide not to comply with labor, consumer, and environmental laws).

Even as they have succeeded in passing tax cut after tax cut, including 2017's regressive mess (which was a travesty both as a matter of substance and process), all in the name of redistributing to the rich from everyone else, Republicans are more than happy to help rich people and businesses engage in do-it-yourself tax cuts by having the government look the other way.

The most obvious method of doing this is to handcuff the tax cops. Who cares what the law says if there is no one there to enforce it?

All of which makes it surprising that Donald Trump's recently announced federal budget would slightly increase the IRS's budget. What is going on here?

Thursday, March 21, 2019

The narrative of the moment in the political press and the punditocracy tells the story of a veritable civil war among Democrats, with the two sides usually described as the "the left" and "centrists," although there are all kinds of near-synonyms in use. The big idea is that the more conservative Bill Clinton-style establishment types are worried that the surge of energy on left is going "too far."

I have already written quite a bit about this topic (see, e.g., here and here), with my principal argument being that the broad agenda that is being called far left is anything but, both as a matter of substance and in terms of political acceptability. Notwithstanding the presence of people in the mix who call themselves democratic socialists, it is difficult to find a substantive proposal offered by the supposed extremists that is either extreme or unpopular.

Indeed, I recently claimed that the current avatar of the not-left Democrats, Joe Biden, is actually not that far from the supposedly lefties. As I put it: Biden "is certainly more of a cautious Obama-style type[, but his] reactions to
liberal policies are not typically 'No, let's do something else instead'
but merely 'Aw jeez, guys, not so fast.'"

That argument, however, at least suggests that there is no difference on substance among different camps of Democrats. If anyone interpreted my words in that way, that is my fault, because I certainly do continue to have serious disagreements with many of the small-but-powerful group of Democratic power players who reach for the smelling salts every time a progressive idea hits the news.

As it happens, however, one of the economists who has been most closely associated with the Clinton-Obama model -- an approach that people have described alternatively as substantively centrist (or even center-right) or as merely a tactical disagreement with more openly progressive camp -- recently conceded that the time for his group is over. This is an important moment, because it further isolates the establishment Democrats who are furiously working against the progressive agenda.

The economist in question is Professor Bradford DeLong of Berkeley, who recently sat for an interview with Vox after creating some genuine and well deserved buzz with a series of tweets that included this arresting line: "The baton rightly passes to our colleagues on our left." Who is DeLong, what did he say, and why does it matter?

Wednesday, March 20, 2019

by Michael C. Dorf
In my latest Verdict column, I take note (as have numerous others) of the recent calls by Justice Clarence Thomas for the re-examination of long-settled constitutional doctrines. Thomas objects that the Court's modern case law did not ground these doctrines in the Constitution's original meaning. He then points to substantial evidence that the doctrines--in particular the rules of NY Times v. Sullivan and Gideon v. Wainwright--contradict the original meaning of the First and Sixth Amendments respectively.

My column raises a number of familiar criticisms of originalism, including some that overlap with the argument Prof. Segall recently laid out here on the blog earlier this week. The column then pivots to focus on a temporal problem: The cases at issue arise out of state laws and are thus governed not by the First and Sixth Amendments themselves but by the Fourteenth Amendment, which makes the relevant provisions applicable against the states. Although Justice Thomas claims that unbroken practice prior to the 1960s entails that the Sullivan and Gideon rules are wrong as agains the states no less than as against the federal government, he does not take account of the possibility that in at least some circumstances the meaning of a term used in the Bill of Rights might have evolved between 1791 and 1868. I give a couple of plausible examples.

I then point out an odd implication. Prior to nearly-full incorporation of the Bill of Rights, states sometimes were governed by a looser due process standard than the standard that governed the federal government under a right enumerated in the Bill of Rights; yet, where a term evolved from less restrictive of government action to more restrictive of government action between 1791 and 1868, applying original meaning per the general approach that originalists purport to favor would lead to stricter controls on the states than on the federal government.

Tuesday, March 19, 2019

I grew up thinking that what I saw around me was normal. There were plenty of reasons to think that this was true. I am a white, Anglo-Saxon protestant. I grew up in a suburb of a medium-sized midwestern industrial city. I am a Baby Boomer. Long before half-term Governor Sarah Palin joined the disgusting effort to try to turn the words "real America" into a political weapon, it was difficult for people like me to think of America as anything but people like us and places that seemed familiar to us. The culture reflected us, and no one questioned it very much.

That is not to say that we were unaware of differences, of course. We knew about cities, but when I was growing up, most American cities were emptying out, with White Flight and the beginnings of industrial decline making racial differences between cities and suburbs even more difficult not to notice. And it is not as though people like me thought of our lives as better than everyone else's -- or even all that good. In fact, we thought of our lives as boring, vanilla, and stultifying. Bruce Springsteen was from a somewhat lower economic class, but there is a reason that his songs about getting the hell out of this lousy town resonated with tens of millions of alienated people.

Today, the world reels from the latest act of white supremacist mass murder, this time in New Zealand, but really it could have happened in any of the obvious countries, certainly here in the U.S. As I have read various commentaries on this tragedy, especially Jamelle Bouie's excellent New York Times op-ed, "The March of White Supremacy, From Oklahoma City to Christchurch," I was reminded of a bit of family lore that I occasionally share as a lighthearted moment but that includes an element of cultural context that is revealing about Americans' assumptions about race.

Monday, March 18, 2019

Professor Jud Campbell (whom I have met only a few times casually) at the end of his excellent Yale Law Journal article titled "Natural Rights and the First Amendment," concluded the following:

The First Amendment ... was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom....[P]erhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

This important contribution to both First Amendment doctrine and originalism should be read by everyone interested in the First Amendment or originalism, especially Justice Clarence Thomas, who recently advocated overturning the landmark decision New York Times v. Sullivan. Thomas said the following:

New York Times and the Court’s decisions extending it
were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it,
the Court fashioned its own federal rule[s].... We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should
carefully examine the original meaning of the First and
Fourteenth Amendments. If the Constitution does not
require public figures to satisfy an actual-malice standard
in state-law defamation suits, then neither should we.

There are two reasons Justice Thomas should read Professor Campbell's article. First, Campbell persuasively demonstrates that most of the Court's free speech doctrine cannot be supported by an originalist methodology. In a sense, this thesis supports Justice Thomas' view that Sullivan shouldbe reexamined, but it also calls into question many other Supreme Court decisions that comport with Justice Thomas' priors. No doubt, Thomas will not suggest reconsidering those cases. Second, Campbell's anti-originalist First Amendment observations apply equally to most other important areas of litigated constitutional law, few of which can be traced back to founding era evidence.

Friday, March 15, 2019

Have the Democrats started to go too far to the left? Anyone who follows the major newspapers or other mainstream news sources can be forgiven for thinking so, given how often that claim is being repeated these days. And anyone who has read any of a half dozen or so of my recent columns here or on Verdict knows that I find that assertion utterly absurd. (See., e.g., yesterday's Dorf on Law column.) Even now, however, there is still surprisingly more to say about this dangerous meme.

The major problem is that far too many journalists continue to try to prove that they are not "the enemy of the American people." Because they do not realize (or are afraid to admit) that the Republicans are simply continuing to "work the refs," high-profile journalists overcompensate for their supposed liberal bias by being especially hard on liberals. This takes familiar forms such as false equivalence, whataboutism, and similar dodges that allow skittish journalists to say, "See, we're critical of Democrats, too!" (And, on the other side, the press inexplicably refused to treat Paul Ryan as the fraud that he so clearly was -- and is.)

The worst form of this tendency, however, is hippie-punching, which the Urban Dictionary defines aptly: "The practice common among establishment centrists of ritualistically denigrating progressives in order to win over imaginary swing voters and David Brooks. Sometimes misinterpreted as a boneheaded
political mistake, it's actually a sign of deep and unselfish
commitment to pleasing owners and professionals even at the cost of
losing elections."

The classic hippie-puncher was Bill Clinton (remember Sister Souljah?), although former Barack Obama political whisperer David Axelrod was also a practitioner. The idea is to court respectability with conservatives by saying, "Yeah, those guys are too extreme. We're not scary like them." And journalists who insist on (what they wrongly think of as) balance love this strategy. Punch a hippie to prove one's bona fides!

With everything that has happened in the past few years, one would think that this kind of mindlessness would have been banished from the press room, but here we are in 2019, and we still see it. A lot.

Thursday, March 14, 2019

Three years ago, when it looked as though Donald Trump's takeover of the Republican Party might yet be stopped by party insiders (who were desperately trying to get people to vote for one of a cast of almost comically overrated contenders -- Ted Cruz, Marco Rubio, Bobby Jindal ... ), people started to wonder whether Trump would retaliate by mounting a third-party campaign. He was thus asked -- pointedly and prominently, especially during the joint appearances that somehow were called debates -- whether he would pledge "here and now" that he would rally to support the Republican nominee if he lost.

Trump refused, even though the others onstage would always take the pledge. (Everyone knew the question was not aimed at them, but in the interest of appearing balanced, they went through the motions.) The matter was never tested, of course, but it seems more than likely that Trump would have been willing to continue his ego-fest as an independent, even if doing so would have resulted in a Hillary Clinton presidency.

Although Trump was (as ever) a special case, the question of how to handle losing is at the core of political life. "Politics ends at the water's edge" captures the idea that national interests supersede political rivalries, even across parties. The peaceful transition of power after an election -- another fundamental assumption of the American system that Trump might well flout -- similarly expresses the idea that losers rally around the winner at least enough to say that the government is legitimate and that future elections will always be there to reverse one's fortunes.

On the intra-party level, as in Trump's 2016 flirtation with a third-party run, the question of loyalty and sore losing is especially acute. There is always the possibility that a person can leave in disgust, so any party has an interest in keeping the loser and his or her supporters in the fold. When Hillary Clinton won the Democratic nomination, there was a lot of pressure on Bernie Sanders to come out strongly in support of her. Although there has lately been some reported snark from former Clinton people about Sanders being a demanding surrogate, he certainly did a lot to support Clinton and gave a very gracious speech at the convention, all the while working to keep his committed and disappointed supporters from engaging in all-out revolt.

The question that I am interested in today is whether the Democratic establishment and the NeverTrump non-Democrats are going to view the solidarity pledge as a one-way deal. That is, they clearly expect "the left" to rally around a centrist or center-right candidate; but it is at best not clear that they will reciprocate if the nominee is not to their liking.

It is time to get them on the record on this question: "Do you pledge that, no matter who is the Democratic nominee, you will support her or him and campaign enthusiastically for the ticket in the general election?" This should not be a difficult question, but I am worried that it is for some people.

Wednesday, March 13, 2019

by Michael C. Dorf
On Verdict today, Prof Colb has a column that looks at the reactions to the non-indictment decisions in the police shooting of Stephon Clark. She explains how narratives associated with "Black Lives Matter" and "Blue Lives Matter" shape perceptions. As the title here suggests, she applies the same analysis to Me Too and Jussie Smollett's hoax. Check it out.

Tuesday, March 12, 2019

The looming threat of autocracy that Donald Trump poses deserves more attention than it is getting. In a Verdict column last week, I described why we should take very seriously the idea that Trump will simply refuse to leave office -- even if he loses next year's election badly -- and why Republicans are showing every sign of going along with what would amount to a coup. "Oh, he's right that there was massive voter fraud. That's why I lost my Senate seat, too. We can't let Democrats steal elections!"

Former Trump lawyer Michael Cohen might be a convicted liar, but when he says, "Given my experience working for Mr. Trump, I fear that if he loses the
election in 2020, that there will never be a peaceful transition of
power," I suspect that he is telling the truth.

I do understand why many people do not want to "go there": first, it
sounds alarmist to call someone a would-be dictator ("This is America!
We're stronger than any one man."); and second, living in denial is more
comfortable than confronting reality. Even though neither of those reasons justifies ignoring or diminishing
the threat, it is at least possible that the worst will not happen.

For today, therefore, I want to put on an optimist's glasses when it comes to next year's elections and say that the Democrats will win the presidency and both houses of Congress (which would likely also mean picking up quite a few state legislative seats and governorships) — and Trump and the Republicans accept the results. What then? Will things go back to something that can be called normal? In a word, no. It turns out that even the optimistic scenario quickly becomes pretty darned pessimistic.

Monday, March 11, 2019

Next week I have the privilege of participating in a symposium at the University of Nevada at Las Vegas on substantive due process. I plan to use my time to argue that the Court should not only repudiate that anti-textual, anti-historical doctrine, but also suggest the Court should not use either the Ninth Amendment or the Privileges or Immunities Clause as its substitutes. The costs of the Justices enforcing their personal views on natural law, morality, or call it whatever you want, are just too great, especially when it looks like we will for the near future need the Court to save its prestige and energies for difficult and urgent separation of powers problems. I will briefly sketch out my general arguments here, and eventually write a much more detailed article on the subject.

Friday, March 08, 2019

Chief Justice John Roberts surprised some observers when he joined his four more liberal colleagues to grant a stay of the decision by the U.S. Court of Appeals for the 5th Circuit in June Medical Services v. Gee. The stay blocked Louisiana’s law requiring doctors performing abortions to have admitting privileges at local hospitals. The petitioners argued that the Louisiana law was substantially similar to the Texas admitting privileges law that the Supreme Court invalidated less than three years ago in Whole Woman’s Health v. Hellerstedt. The petitioners also contended that the distinctions drawn by the appeals court between the two states’ laws were unpersuasive. The chief justice dissented in Whole Woman’s Health. By voting to stay the Louisiana law, was he signaling a retreat from his position there? Does he now accept the court’s abortion jurisprudence as settled?

Maybe, but there is a simpler and likelier explanation. Roberts cares a great deal about the Supreme Court as an institution. When a state court or lower federal court defies or evades the high court’s precedents, it challenges the court’s authority. Accordingly, it is easy to imagine that the chief justice thinks Whole Woman’s Health and the cases it applied — including Roe v. Wade and Planned Parenthood v. Casey — should be overruled. However, he does not take kindly to lower courts usurping his court’s prerogative of deciding whether and when to overrule its own cases.

Thursday, March 07, 2019

Today's question is likely to seem counter-intuitive (if not flat-out odd) in today's political context: Why are we acting as though there is any chance at all that Donald Trump can win the 2020 election?

After laying out the reasons to believe that next November will be a laugher for the Democrats, I will explain the strategic and prudential reasons for the Democrats to assume that it will be a tough fight. I will also, however, add a brief warning about the downside of treating this as a close call -- and a reminder that none of this might matter in a post-democratic world.

Wednesday, March 06, 2019

By Michael C. Dorf
My latest Verdict column discusses a recent federal district court ruling that draft registration is unconstitutional on the ground that, by applying to men but not women, it denies equal protection. I don't engage the merits. Rather I ask whether the court erred by anticipatorily overruling a SCOTUS precedent--Rostker v. Goldberg--in violation of an admonition from the justices to leave them the prerogative of overruling their own cases. I conclude that the district judge did violate the admonition but that he might get away with it, because an anticipatory overruling will tend to tee up the merits. Here I want to discuss another recent case. In this one, a lower court judge also thought that a binding precedent was wrong, but rather than take it upon herself to declare it inoperative, she followed it and flagged the issue for further review.

Jam v. Int'l Finance Corp is a lawsuit by Indian citizens against an international organization alleging that the latter's lax supervision of its loan led to catastrophic environmental harm. IFC invoked the International Organizations Immunities Act, (IOIA) which grants international organizations the “same immunity from suit . . . as is enjoyed by foreign governments.” When the IOIA was enacted in 1945, foreign governments enjoyed essentially absolute immunity, but today they do not. The question posed by Jam was whether the IOIA should be interpreted statically--so that IFC would have the same immunity that foreign governments enjoyed in 1945--or dynamically--so that IFC would have the same immunity that foreign governments enjoy now.

The DC Circuit, relying on its own circuit precedent, ruled in favor of static interpretation. Judge Pillard concurred in that result, because a panel precedent can only be overruled by an en banc or Supreme Court decision, but she wrote separately to say that she thought the controlling circuit precedent was wrong. That concurrence may have played a role in alerting the Supreme Court to the need for a correction. The correction came last week, when the Court ruled 7-1 for dynamic rather than static interpretation of "same immunity."

That bottom line strikes me as sensible if not inarguable. But the route the Court took to get there and its rejection of arguments made by Justice Breyer in dissent raise some potentially profound questions about the long-running debate about statutory interpretation.

Tuesday, March 05, 2019

After yet another hiatus, the federal debt ceiling is back. Can you feel the sudden wave of fiscal sanity? Do you thrill to the return of limits on (supposedly) uncontrolled debt? Are you awed by the power of Congress to legislate away economic reality? Of course not, because the debt ceiling does nothing good, and its existence can only set us up for disasters in the future.

This time, the debt ceiling was put into hibernation for a bit more than a year, but if memory serves, it has been in suspension more than it has been in force for the last seven or eight years. The suspension stratagem was a Mitch McConnell special, whereby the esteemed Republican leader of the United States Senate figured out -- not for the first time -- that his party's self-styled budget hawks were either idiots or cynics who considered their voters to be idiots. Voting for an increase in the debt ceiling? Unthinkable! Voting to suspend the debt ceiling and then bring it back at a higher number? Let's do it!

And here we are. As of March 1, the debt ceiling is formally back in force. Longtime readers of Dorf on Law know -- boy, do they know! -- that Professor Dorf and I have spent a lot of time and spilled a lot of e-ink on this topic since the Tea Party Republicans first used the debt ceiling as a hostage-taking device in 2011. When I saw the news last week reminding me that the most recent suspension was ending, I tried to think of the best adjectives to describe the task of thinking through these issues yet again: dreary, obligatory, depressing, pointless? And that was without resorting to a thesaurus.

But because the debt ceiling still exists for some reason, and because of its potential to do real harm, it is important to run once more through the details. Many readers, after all, might have been mercifully spared from these discussions in the past. Why should they not be drawn into the insanity?

Monday, March 04, 2019

Among the antics to which we were treated last Wednesday during Michael Cohen's testimony before the House Oversight Committee was the spectacle of Rep. Kelly Armstrong (ND-R) asking Michael Cohen if he would turn over to the Committee the approximately 100 tapes Cohen claims to have made of conversations with clients - followed by Texas Republican Charles "Chip" Roy expressing sputtering malaphoric outrage that Cohen would do so "with [sic] the bat of an eye."

A number of Republican lawyers on the committee either suggested or stated outright that Cohen (had he not been disbarred just a few days earlier 26, 2019) would or should be subject to discipline either for taping his clients without their permission, or for turning over the resulting recordings to law enforcement or the House Oversight Committee. Are they right? In a word - no.

Friday, March 01, 2019

by Michael C. Dorf
On Monday the Supreme Court issued a per curiam opinion in Yovino v. Rizo, reversing the Ninth Circuit en banc ruling in the case. The SCOTUS did not disagree with or even address the substance of the Ninth Circuit decision. Rather, it reversed because the lead opinion in the Ninth Circuit's 6-5 ruling was authored by Judge Stephen Reinhardt, who died 11 days before it was released.

A footnote in the Ninth Circuit opinion stated: "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death." That wasn't good enough for the Supreme Court, however, which announced a formal rule that a judge must validly hold office at the moment an opinion is released.

The SCOTUS decision is justifiable as a bright-line rule, but, as I shall explain, the case was not quite the no-brainer that the justices imagined. As my co-blogger and friend Prof Segall tweeted on Monday, "[t]he real issue" was not, as the per curiam claimed, whether "a deceased judge [may] exercise the judicial power of the United States after his death," but (now I'm quoting Prof Segall again) "whether dead judges could vote when they were alive but before the decision formally issued, a harder question, and not for nothing but they could have slipped in a comment about this judge’s long and outstanding service."

I agree with both of Prof Segall's observations. On the second point, I share the view of my fellow former Reinhardt clerk Prof Ben Sachs, who thought the per curiam a bit too snarky given the circumstances. As a few people have observed, an objection to that (perceived) snark might explain why Justice Sotomayor concurred in the judgment but not the per curiam.

For now I want to focus on the Court's bright-line rule. As I said, I think it is justified, all things considered, but it has costs and is in some tension with no less a decision than Marbury v. Madison.